The July 16, 2020 ruling by the high court seemed like a glimmer of hope for Erick Odera and the victims of lead poisoning in Owino Uhuru. The court had awarded them a compensation of Sh1.3 billion, offering a semblance of justice for their immense suffering.
Odera, having lost his first wife and two children to suspected lead poisoning from a battery smelting company, saw this as a chance for closure and the means to seek treatment for himself and his remaining family members who were also battling health complications.
However, the cruel hand of fate had something else in store. Three years later, their hopes were shattered when the appellate court overturned the verdict, quashing the compensation and reversing the progress made.
Odera and the residents of Owino Uhuru were devastated, labelling the appellate court judgment as unjust and inconsiderate. The impact of lead poisoning on their lives had been severe, with numerous deaths and countless others suffering from various health issues.
Odera lamented the difficulty of seeking compensation from a company that had long ceased operations and whose owners remained unknown. The closure of the company made it almost impossible to hold anyone accountable for the devastating consequences of their actions.
"My child died in 2001, and my wife died in 2014. Our hopes for treatment were pinned on the compensation, but the court's decision has left us on our own," expressed Odera, with a tinge of despair.
“I was hoping that the award would help me treat myself and my family as we have complications as a result of the lead poison from the smelting company. But the judgment by the appellate court has robbed us of that hope,” Odera said.
The appellate court ruling, delivered by Justices Gatembu Kairu, Jessie Lesiit, and Pauline Nyamweya, not only overturned the compensation but also set aside a Sh700 million fine imposed on the respondents.
The fine was intended to facilitate the cleanup of the environment affected by lead poisoning, with the National Environment Management Authority (NEMA) overseeing the process. Instead, the judges ordered a fresh hearing on the matter of damages before an Environment and Land Court in Mombasa.
Phylis Omido, Executive Director of the Center for Justice Governance and Environment (CJGEA), voiced her outrage at the state and the appellate court for disregarding the fact that hundreds of children and adults had lost their lives or were suffering from severe health complications due to lead poisoning.
She emphasized that the case revolved around the well-being and lives of innocent children and their parents. Omido argued that the solid case presented by the victims had been callously overturned, leaving them hopeless and deprived of the justice they desperately sought.
“We are decrying this judgement, and the people have lost hope. What justice are they serving when people have lost their loved ones. From now we are going to have protests. Let them come pick us, we are tired of pursuing justice that seems elusive in this country,” said Omido.
The decision to send the case back to the environment court for a fresh start was met with further dismay. Omido pointed out the insensitivity of such a move, considering that some of the victims had already passed away. Seeking justice had been an arduous journey since 2012, and despite their relentless pursuit, the residents had been denied the justice they deserved the most.
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“It is disheartening that few individuals took away the justice and said that despite the people deserving compensation, there must be proof that they were directly affected. What liability are they remedying,” said Omido.
Omido disclosed that the CJGEA was fully equipped to handle the compensation award and had even brought in experts from abroad to train NEMA in environmental cleanup.
Scientific studies had been conducted, figures estimated, and evidence tendered in court to support the victims' claims. She argued that the courts had unjustly imposed a requirement for direct evidence of the victims' exposure to liability, disregarding the need for remedying the damage caused.
The appellate court's revised apportionment of liabilities directed NEMA to pay 30 per cent of the total damages, Metal Refinery EPZ Ltd 40 per cent, while EPZA and Penguin Paper and Book Company Ltd were assigned 10 per cent each.
Toxicology reports revealed alarming lead levels in the affected area, surpassing acceptable standards by a staggering percentage. The victims, such as Irene Akinyi, showed.
According to the analysis of the sample of soil and water from open areas of Owino-Uhuru village, the area has high lead levels of 64000 mg/kg while other areas had 109,000mg/kg.
The acceptable level under the Environmental Protection Agency standards is 400mg/kg and 1000mg/kg in areas with children. According to toxicology reports, analyzed by Dr Ajoni Adede, said one of the many residents.
Irene Akinyi’s blood was found to have 420mg/dl, higher than the acceptable 10mg/dl level. Her neck glands are swollen but the doctor recommended that lead levels in her blood ought to be reduced before she undergoes a correctional surgery.
Dr Adede said that the impairment in Akinyi’s system was due to lead absorption, which caused conditions such as dermatitis, loss of appetite and poor memory.
Metal Refinery Limited was built near the Owino-Uhuru sprawling slums in 2006 but later closed down over protests by residents.
Toxicology reports by the then Director of Medical Services revealed that the blood of children of Owino Uhuru who were tested bore 234mg/dl lead yet recommended level is 5mg/dl.
In some area lead levels in the soils and water at the stricken Owino Uhuru slums was found to be 16,000 per cent more than that of the recommended levels by experts, according to the reports.
An expert in metallurgy demonstrated in a case that a now shut battery smelting plant had caused wanton poisoning of the slum ecosystem and residents with lead.
These reports were prepared by the Government Chemist, Director of Medical Services and the Environment Protection Agency of the Republic of Kenya and are tabled in court in a case where the court has since awarded the victims Sh1.3 billion.